Welcome to the slippery slope, or so you might think. The Salt Lake City Tribune reports that polygamous TLC reality show performers Kody, Robyn, Christine, Meri, and Janelle Brown have successfully beat back Utah’s attempt to have their suit over the state’s anti-bigamy law tossed as non-justiciable:
Utah state attorneys argued the “Sister Wives” suit should be dismissed after a prosecutor pledged not to prosecute them for bigamy, but U.S. District Judge Clark Waddoups disagreed. In his Friday ruling, Waddoups wrote that a new Utah County Attorney’s Office policy to avoid prosecuting consenting adult polygamists in the future seems to have been ploy to avoid the suit.
The “strategic attempt to use the mootness doctrine to evade review in this case draws into question the sincerity of [the Utah County Attorney’s]contention that prosecution of plaintiffs for violating this statute is unlikely to recur,” Waddoups wrote.
That means Judge Waddoups believes this case isn’t already moot. For those who don’t speak constitutional law jargon, the simple version of the rule here is that a case will be thrown out of court for “mootness” when there is no action the court could take that would have any real effect on anyone. The US Constitution bars federal courts from hearing moot questions of law because, under Article III, federal courts can only decide live “cases and controversies” between parties with real interests in the outcome. Where there is no case or controversy, such as when a case is moot, the issue is “non-justiciable” and the courts are required to dismiss the case.
There is a well established exception to the mootness rule, however, which Judge Waddoups appears to have applied here. The doctrine of “voluntary cessation” says that wh the defendant has voluntarily ceased the behavior that threatens the Plaintiff, the case won’t be dismissed for mootness if there is a serious possibility that the behavior will recur in future when the threat of a pending law suit no longer prevents it. Think of it as the Eddie Haskell rule. Bad actors aren’t allowed to escape the law by cleaning up their acts and acting like the well-mannered model child whenever the courts are around standing in for Ward and June Cleaver. The ruling means the judge has concluded that because prosecution against the Brown family for bigamy remains at the State of Utah’s discretion, that is enough for the case to remain “live” even if there is no immediate threat of enforcement.
It remains to be seen whether the 10th Circuit will agree with Judge Waddoups’s ruling, so Brown Family lawyer Jonathan Turley’s claim that “this decision shows that there will be no alternative to a ruling on the merits in this case” may be premature.
Among those paying close attention to this rapidly evolving area of constitutional law, however, there is cause for a raised eyebrow or two that the Brown Family’s complaint against Utah’s anti-bigamy statute is going forward based on a claim that it violates the family’s unenumerated right to privacy, as opposed their First Amendment right to free religious expression. The reason is the argument raises the specter of the common slippery slope argument offered by opponents of gay couples’ right to marriage. If the right to privacy protects same-sex marriage, the argument goes, what is to say it doesn’t also protect polygamy? From there the argument rapidly devolves into rhetorical santorum.
Since the Brown v Utah case seems aimed directly at the currently quite fragile scaffolding of the Right to Privacy, at a time when the US Supreme Court could hear arguments on California’s prop 8, the Federal Defense of Marriage Act and various new state abortion restrictions in the very near future, the question of whether a slippery slope will soon have us all marrying our pet ostriches might be settled sooner rather than later. What exactly the court will make of privacy claims from people who chose to expose their private family life to national television audiences remains to be seen, but the case is set for a hearing on the merits in January 2013.